Plunkett v. Astudillo, 2019 ONCJ 9

ONTARIO COURT OF JUSTICE CITATION: Plunkett v. Astudillo , 2019 ONCJ 9 DATE: January 8, 2019 COURT FILE No.: D40748/07 BETWEEN: SHANNON PLUNKETT Applicant — AND — HAROLD ASTUDILLO Respondent Before Justice Roselyn Zisman Heard on November 1 and December 21, 2018 Reasons for Judgment released on January 8, 2019 Shannon Plunkett....................................................................................... on her own behalf Sheldon Tenenbaum................................................................ counsel for the respondent Reasons for Decision ZISMAN, J. 1.

Introduction [ 1 ] This is a default hearing brought by applicant, Shannon Plunkett seeking enforcement of the child support order of Justice Harvey Brownstone dated September 21, 2011. [ 2 ] The order of September 21, 2011 provides that the respondent pay child support for Nathaniel Antonio Astudillo born […], 1997 and Nicholas Antonio Astudillo born […], 1999 in the amount of $753.00 per month based on an attributed income of $50,000.00 as of September 1, 2010. The respondent was also ordered to pay $859.37 as his proportionate share of special expenses.

The respondent was given leave to bring a motion to vary if the amounts need adjusting for the years 2009 and 2010 once he has served and filed his income tax returned and Notices of Assessment for those years. [ 3 ] The parties agree that as of October 24, 2017 Nathaniel is no longer entitled to child support as he moved into the home of the paternal grandmother and is not in school. [ 4 ] The parties also agree that Nicholas is not entitled to child support as of July 1, 2018 as he completed high school in June 2018. [ 5 ] The applicant specifically seeks the following amounts payable within 60 days:

a) arrears fixed by the Family Responsibility Office as of November 1, 2016 at $36,712.84;

b) further arrears calculated by herself from December 2016 to June 2018 amount of $11,295; and

c) legal costs of $7,127.89. [ 6 ] The applicant seeks enforcement by means of the incarceration of the respondent in default of payment. [ 7 ] The respondent agrees that the arrears owing are $48,000 but does not agree that the Applicant is entitled to claim her prior legal costs. 2. Litigation background [ 8 ] The court of order of September 21, 2011 was filed with the Family Responsibility Office. [ 9 ] In 2014, the respondent commenced a Motion to Change [1] . At about the same time, the Family Responsibility Office began enforcement proceedings and the respondent sought a Refraining Order.

The Refraining Motion was granted on consent with no terms of payments as the respondent was in receipt of social assistance. [ 10 ] The Motion to Change was heard before Justice Robert Spence and on June 1, 2015 he released his decision dismissing the respondent’s Motion to Change. [ 11 ] Justice Spence made the following findings of fact in dismissing the Motion to Change: • Justice Brownstone’s order was made after the father was fired for cause from his job with Manulife as a customer representative; he cannot now use his own misconduct to obtain relief from his child support obligation • his claim to be physically disabled is based on a 7 line letter from a chiropractor stating that due to a motor vehicle accident it is his opinion that the Respondent should refrain from doing any physical labour • there is no independent evidence that the father was involved in a motor vehicle accident • his claim to be unemployable due to his major depressive disorder is based on letters from Dr.

Rudky, that state that he was unable to function in any gainful employment, are based on the respondent’s self-reporting and without any meaningful analysis • his claim for ODSP was rejected • he failed to declare in excess of $13,00 in bursaries he received from York University in 2012/2013 • he testified that he may have given the funds to his mother after failing to disclose his bank statements to verify where the funds were deposited • his testimony that he gave these funds to his mother is found to be inconsistent with his claim that his mother supported him and that claim is inconsistent with his evidence that he was paying his mother monthly rent consisting of most of the money he received from social assistance as he claimed his mother supported him • he failed to comply with disclosure orders in particular his mother’s bank statements despite his assertion that he had co-mingled his own funds with his mother’s funds [ 12 ] In dismissing the Motion to Change, Justice Spence drew an adverse inference from the father’s failure to provide the court ordered disclosure and found that the “father suffers from serious credibility issues.” [ 13 ] On December 29, 2016 the applicant then brought a motion seeking that the respondent’s child support obligation be deduced monthly from his social assistance cheque.

The court dismissed this motion as pursuant to section 7(1) of the Family Responsibility and Support Arrears Enforcement Act (“the Act”) the Director may refuse to enforce a support order where the support payor is in receipt of social assistance and has no assets or income available to satisfy the support order and any arrears under the order. [ 14 ] On January 20, 2017 the applicant withdrew the support order from the Family Responsibility Office and commenced this default hearing to enforce the outstanding support order. [ 15 ] The applicant also brought a temporary motion for third party disclosure from the respondent’s mother, Teresa Astudillo.

Ms Astudillo consented to an order for disclosure. 3. The applicant’s position [ 16 ] It is the applicant’s position that since the support order has been registered with the Family Responsibility Office, no active enforcement steps have been taken as the respondent has been in receipt of social assistance. [ 17 ] The applicant submits that the respondent leads a normal life style, travels and has girlfriends.

It is submitted that he is capable of working and works for cash. [ 18 ] It is the applicant’s position that the respondent has made no efforts to look for employment and has never made paying child support a priority and that there should be a severe consequence to him if he does not pay. Further, it is submitted that although some financial disclosure has been provided there is quite a bit missing from both the respondent and the respondent’s mother. 4.

The respondent’s position [ 19 ] It is the respondent’s position that he is unable to work and since the order of Justice Spence dismissing his Motion to Change he is now in receipt of ODSP. It is the respondent’s position that his only source of income is $1,169.00 per month from ODSP and he

has no assets. [ 20 ] The respondent requests that the court fix the arrears and based on his annual income from ODSP of $14,028.00 that he pay the arrears at the rate of $156.00 per month [2] . [ 21 ] It is also the Respondent’s position that in dismissing the respondent’s motion to change Justice Spence did not order costs and accordingly the applicant cannot now claim her counsel’s fees for that proceeding. 4.

Applicable legal principles [ 22 ] Section 41 (1) of the Act provides that when a support order is filed with the Director and is in arrears, the Director may prepare a statement of arrears. [ 23 ] Section 41 (2) of the Act provides that when a support order that is not filed with the Director is in default the recipient may file a request with the court, together with a statement of arrears, and then the court shall serve the payor with notice of a hearing requiring him to file a financial statement and to appear before the court to explain his default. [ 24 ] In a default hearing, the burden or onus of proof is upon the support payor.

Pursuant to section 41 (9) of the Act, unless the contrary is shown, two legal presumptions apply namely, that the support payor has the ability to pay the arrears and ongoing support and that the statement of arrears prepared by the Director is presumed to be correct. [ 25 ] Section 41(9) reads as follows : Presumptions at hearing s. 41(9) At the default hearing, unless the contrary is shown, the payor shall be presumed to have the ability to pay the arrears and to make subsequent payments under the order, and the statement of arrears prepared and served by the Director shall be presumed to be correct as to arrears accruing while the order is filed in the Director's office." [ 26 ] These presumptions are not absolute, rather they are rebuttable presumptions .

However, the onus or burden of disproving the presumptions rests on the support payor.

In relation to the ability to pay the arrears and to make subsequent payments under the order, the support payor must prove, on a balance of probabilities, through admissible evidence, that he does not have the ability to pay. [ 27 ] In this case, it is agreed that there are no ongoing child support obligations so the issue is the accuracy of the statement of arrears and whether or not the respondent has a valid reason for nonpayment of those arrears. [ 28 ] Section 41(10) of the Act sets out the powers of the court in determining the appropriate remedy to address the arrears owing as follows: Powers of court

(10) The court may, unless it is satisfied that the payor is unable for valid reasons to pay the arrears or to make subsequent payments under the order, order that the payor, [Emphasis added] (

a) pay all or part of the arrears by such periodic or lump sum payments as the court considers just, but an order for partial payment does not rescind any unpaid arrears; (

b) discharge the arrears in full by a specified date; (

c) comply with the order to the extent of the payor's ability to pay; (

d) make a motion to change the support order; (

e) provide security in such form as the court directs for the arrears and subsequent payment; (

f) report periodically to the court, the Director or a person specified in the order; (

g) provide to the court, the Director or a person specified in the order particulars of any future change of address or employment as soon as they occur; (

h) be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the arrears are paid, whichever is sooner; and (

i) on default in any payment ordered under this subsection, be imprisoned continuously or intermittently until the period specified in the order, which shall not be more than 180 days, has expired, or until the payment is made, whichever is sooner. 2005, c. 16, s. 24 ; 2014, c. 7 , Sched. 10, s. 11 (1). [ 29 ] In Hargreaves v. Hargreaves [3] Justice Paddy A. Hardman dealt with the meaning of "valid reason". At paragraph 13 of her reasons for judgment, she states: The test of a "valid reason" is quite properly "an event over which the debtor has no control which renders him totally without assets or

income with which to meet his obligations". [ 30 ] In Ontario (Director, Family Responsibility Office) v. De Francesco [4] , Justice Carolyn Jones further explores the meaning of "valid reason" under section 41 (10) of the Act as follows at paragraph 21 of her decision: Valid reasons, within the meaning of s. 41(10) of the Act, imply reasons for which the payor cannot be faulted or for which the payor does not bear responsibility in the culpable sense.

The court would expect some evidence of circumstances where, despite reasonable, diligent and legitimate efforts by the support payor to comply with the support order, the support payor has been unable to do so for reasons that are not connected with an unwillingness to pay, a lack of effort, a failure to prioritize the support obligation or a deliberate neglect, failure or avoidance on the part of the payor.

Evidence relating to the past and present circumstances of the payor, including his financial circumstances since the time of the first default under the order, the manner in which he has applied his available income and assets, and his efforts to secure employment or income during the time that the arrears have arisen will have some bearing upon the determination of the legitimacy of the reasons the payor puts forward for his default under the support order.

Circumstances that are beyond the control of the payor, resulting in the payor's inability to pay, would be valid reasons. 2 An illness on the part of the payor, including a mental disorder, rendering the payor completely unable to work on either a full or part-time basis, as in the case before the court, would amount to a valid reason for the payor's failure to pay." [ 31 ] Section 41 (11) of the Act provides that any order made pursuant to section 41(10) does not affect the accruing of arrears, nor does otherwise affect any other means of enforcing the support order. 5.

Discussion What amount of arrears are owing? [ 32 ] As indicated in a default hearing the statement of arrears filed by the Director is presumed to be correct. Therefore the statement of arrears filed by the Director indicating that as of November 1, 2016 the arrears are $36,712.84 is deemed to be correct. The respondent did not dispute this amount. [ 33 ] The statement of arrears prepared by the applicant from December 2016 to June 2018 seeks to fix arrears at $11,295.

However, a statement of arrears prepared by a party is not included in the wording of section 41(1) Act and is therefore not presumed to be correct. [ 34 ] Although respondent’s counsel has agreed to the applicant’s calculation, I find that the applicant’s calculation is not accurate.

In preparing her calculation the applicant deducted half of the child support amount after her older son was no longer entitled to child support rather than determining the amount of child support for one child in accordance with the Child Support Guidelines. [ 35 ] Therefore, from December 2016 to November 2017, child support for 1 child is $450 per month for a total of $5,400. From December 2017 to June 2018, based on the November 2017 Child Support Guidelines, child support for 1 child is $461 per month for a total of $3,227.

Therefore, the arrears owing from December 2016 to June 2018 are $8,627 and the total arrears owing are $45,339. [ 36 ] I agree with the submissions of the respondent’s counsel that the applicant cannot include her lawyer’s fees from the Motion to Change heard in 2015 before Justice Spence as costs were never requested.

Has the respondent proven that he is unable for valid reasons to pay the arrears? [ 37 ] As the arrears have now been determined, the next question for the court to decide is whether the respondent has a “valid reason” for not paying the arrears. [ 38 ] The respondent relies on his medical condition and the fact that he is now in receipt of ODSP as a valid reason for his failure to pay child support. [ 39 ] The respondent has provided a copy of his application for ODSP. He agreed in cross-examination that he had applied for ODSP and was rejected in 2014, 2015, and 2017.

In rejecting his claims, the tribunal found that although the respondent had been diagnosed with a major depressive disorder and personality disorder traits, he was not found to have a substantial impairment or a substantial restriction in his daily life. The tribunal also held that his complaint of lower back pain was not a significant impairment. [ 40 ] However, following the rejection of his claim in 2017, the respondent applied for an internal review of the tribunal’s decision and in September 2018, he was found to be eligible for ODSP. [ 41 ] The respondent did not file a copy of the tribunal’s decision.

However, in his application for an internal review, a copy of a letter dated January 28, 2018 from his psychiatrist Dr. Rudky is included. Dr. Rudky states that until recently she diagnosed the respondent with a major depressive disorder complicated by personality disorder traits and chronic pain. But that in the last two sessions with the respondent he has confided some auditory hallucinations and delusions. As a result Dr. Rudky states that she has changed her diagnosis to a mood disorder with psychotic features or possibly schizoaffective disorder. Dr.

Rudky further states that the respondent also has impulsive anger outbursts and much difficulty interacting with the general public and has much difficulty with daily living activities due to his fatigue, lethargy, depressed mood and lack of attention and concentration. [ 42 ] Dr. Rudky was not called as a witness despite the fact that the respondent has the onus of proving that he has a valid reason for not paying child support. The court is therefore unable to determine if Dr. Rudky’s opinion is based on anything more than the respondent’s self-reporting and if Dr.

Rudky is aware of evidence that the applicant submits indicate that the respondent is able to lead a normal life and may be working.

[ 43 ] I draw an adverse inference from the fact that Dr. Rudky was not called as a witness. [ 44 ] The respondent testified that he completed a transitional year program at York University in 2012 to 2013 and then obtained a job as a research assistant for several months in the summer of 2013. That was the last job he held.

The respondent did not testify that he had any physical or mental health problems that prevented him from doing this job. [ 45 ] The respondent testified that he did not apply for any jobs after this time as he was attempting to obtain ODSP. [ 46 ] In cross-examination, the respondent was shown a text from Michelle Muller to the applicant stating that she met the respondent in December 2014 when he was working at the front desk at Biodynamics Toronto which is a pain management clinic. She states that he worked there full-time before she met him and she thought he continued to work until about November 2015.

She also stated that he worked for cash for minimum wages as the owner “knew what was going on” and was trying to help him out. She also stated that he worked for cash for a catering company. [ 47 ] The respondent denied that he worked at Biodynamics Toronto but stated that he goes to Biodynamics Toronto almost daily as it is a pain clinic and teaches pain management techniques. [ 48 ] The respondent confirmed that he did a testimonial for Biodynamics Toronto stating that in December 2015 he attended a four day program and his pain was significantly reduced.

He further agreed that the comments he made in the testimonial were true. This of course does not coincide with his position that he suffers from chronic pain. His photo is also on their website although it is not clear if this is because he attended the facility often or he was working there. [ 49 ] As a result of the fact that the treatment he received in the 4 day program alleviated his pain, he testified that he attended the intensive 4-5 week summer program that cost about $1,200.

When asked how he paid for the program, the respondent testified that he was offered a “scholarship” for the cost of the program. [ 50 ] The applicant raised the issue of the respondent working at Biodynamics Toronto in her affidavit sworn June 22, 2018. Therefore, the respondent had ample notice that this was an issue for the default hearing and he had the opportunity to summons the owner of Biodynamics Toronto as a witness to dispute the allegation that he worked there, to verify that the cost of the summer program was waived and also to testify about the results of the treatment.

I draw an adverse inference from his failure to do so. [ 51 ] The respondent agreed that he travelled to Ecuador in 2011 or 2012. He testified that his cousin in New York paid for the trip. He also travelled to Ecuador in July 2014 with their son Nicholas, He stayed for 7 weeks and Nicholas stayed for 3-4 weeks. He could not recall who paid for the trip but it could have been his mother or father. He could not recall his daily routine or activities. [ 52 ] In 2016, he also travelled to Ecuador and stayed for about 5 months.

It was his evidence that he travelled with Marlene Muller who paid for the trip and all of the expenses. He agreed that they travelled throughout the country. He denied that they were in a relationship despite stating that they had dated for about a year before the trip. He testified that she was also a client of Biodynamics Toronto and that she was told by the director to pay for his trip. He could not explain why in his affidavit sworn June 8, 2018 he deposed that the trip was paid for by “my then girlfriend Michelle Muller”.

His explanations of why she paid for the trip or why he denied she was his girlfriend are not credible. [ 53 ] The respondent deposed in his affidavit sworn June 8, 2018 and confirmed in his oral testimony that his daily routine since 2013 is to sleep in for most of the day and he tries various prescriptions prescribed by his psychiatrist Dr. Rudky or his family doctor. However, the most recent letter from Dr. Rudky states that the respondent is no longer on any medications as of 2016 and sees her for supportive and insight oriented individual therapy.

The respondent also testified that he attends almost on a daily basis at the Biodynamics Toronto pain clinic and also attends weekly at the Humber River Hospital. [ 54 ] However in cross-examination, the respondent agreed that he has no caretaker to assist him with his daily activities, that he was able to travel in Ecuador for 5 months without any medical assistance except taking his medication and has not been admitted into the hospital or a psychiatric facility for long term in-patient or out-patient intensive mental health treatment.

He further admitted that he goes out with his sons to eat, to the movies, to museums and art galleries. He agreed that he also drove them to go snowmobiling and snowshoeing but denied that he participated in those activities. [ 55 ] With respect to his financial circumstances, the respondent testified that he lived with his mother and paid her $600 per month cash for room and board.

The respondent did not explain why in his financial statement sworn June 8, 2018 he deposed that he paid his mother $300 per month and in his financial statement sworn October 25, 2018 he deposed that he paid his mother $600 per month. His bank account statements do not show any withdrawals of $600 or $300 per month and his mother’s bank account does not show any deposits of $600 or $300 per month. [ 56 ] In cross-examination, the respondent was asked to explain why there were no payments for his internet and cell phone on his bank statements.

He testified that he paid those expenses each month in cash and attends at a kiosk in a mall to pay his bills. He provided no receipts or confirmation of this extremely unusual method of payment. [ 57 ] In cross-examination, the respondent agreed that he purchased both of his sons a MAC computer but he did not recall the cost and he did not explain the source of his funds to do so.

Although he confirmed that his monthly income from ODSP was only $1,169 per month. [ 58 ] At the hearing of his Motion to Change before Justice Spence the respondent admitted that he co-mingled his funds with his mother’s funds and put money into her bank account. He made no such admissions in this hearing. [ 59 ] As a result of the disclosure order made, the respondent’s mother provided some disclosure to the applicant. However, she only provided a

summary of her income tax returns instead of copies of her income tax returns and Notices of Assessment as required by the court order. As a result, it is not possible to determine if she claimed on her income tax return that the respondent paid her rent.

[ 60 ] There was a large discrepancy between the amounts the respondent’s mother claimed as income in her income tax summaries compared to the amount of deposits in her bank statements. The respondent testified that his mother received income from foreign students that boarded in her home and that this explains the disparity. [ 61 ] The applicant in her affidavit sworn August 29, 2018 prepared a chart that indicated the differences between the deposits and declared income for the last three years as follows: Year Cash deposits Income declared on

summary tax return Difference 2015 $47,237.87 $23,547.92 $23,689.95 2016 $39,347.70 $24,807.60 $14,540.10 2017 $40,351.61 $24,385.81 $15,965.80 [ 62 ] Counsel for the respondent did not dispute the accuracy of the applicant’s calculations. [ 63 ] As the applicant had brought a motion for disclosure from the respondent’s mother and this information about the income and deposit discrepancy was in the applicant’s affidavit sworn August 28, 2018, the respondent was aware that the theory of the applicant’s case was that he was working and his income was being deposited into his mother’s account. [ 64 ] The respondent did not call his mother as a witness so that she could explain the discrepancies and provide proof on any other income she received that does not appear to have been declared on her income tax return.

I draw an adverse inference from the failure of the respondent’s mother to testify. [ 65 ] The applicant also submitted that the respondent’s mother did not fully comply with the disclosure order in that she only provided copies of one bank account at the CIBC and credit card statements from only the President Choice Financial, but her Equifax credit report that was disclosed indicates that she had multiple bank accounts and several credit cards.

I also draw a negative inference from the failure of the respondent’s mother to disclosure her other bank accounts and credit cards. [ 66 ] On the evidence before me, I find that it is not possible to conclude that the respondent has “no control over his circumstances” or that he has been rendered “totally without assets or income with which to meet his obligations.” [5] [ 67 ] I find that the respondent is not a credible witness.

The onus is on the respondent to prove on a balance of probabilities that he is unable for valid reasons to pay the arrears. [ 68 ] Despite the fact that the respondent is in receipt of ODSP and therefore there was a finding he is deemed to be disabled and unable to work, I find that there are many discrepancies in his evidence that indicate that he is able to lead a normal life, travel, and have a social life. His explanations about paying his mother room and board and paying cash for his internet and cell phone does not have the air of reality.

The unexplained cash deposits to the respondent’s mother’s bank account lead to the inference that he is working and depositing his funds into her account. The respondent has not provide full, frank disclosure to the court and the respondent was required to provide evidence to dispute the inference raised by the applicant that he is working for cash. [ 69 ] I find that the respondent has not met the onus on him to prove that he is unable to pay the arrears.

What is the appropriate remedy? [ 70 ] If there is a finding that no valid reason exists for non-payment, the court must consider the appropriate order under section 41(10) of the Act. [ 71 ] It is clear that the respondent has had no intention of paying the child support order when it was due and has no intention of making any significant payments with respect to the arrears.

Except for a few months in 2013 when he worked at York University he has never made any voluntary payments. [ 72 ] The applicant withdrew the child support order from enforcement by the Family Responsibility Office due to her frustration that it would not garnish the respondent’s income or seek incarceration for non-payment as he was in receipt of social assistance. [ 73 ] The applicant seeks an immediate lump sum payment of all arrears owing or incarceration for the maximum of 180 days.

However, I have decided to impose a less severe order to permit the court to monitor the respondent’s compliance and with the hope that with the prospect of jail looming the respondent will make the necessary arrangements to pay the arrears. Further, although I have found that the respondent has the present ability and past ability to pay his child support obligation, he does not have any assets in his name and may require some time to make arrangements to pay the arrears.

However, given the history of deliberate non-payment, there must be an incarceration consequence if he fails to pay. [ 74 ] There will be an order as follows: 1. The arrears of support are fixed at $45,339.00. 2. The Respondent shall no later than April 2, 2019 pay a lump sum of $10,000.00 to the Applicant by means of a bank draft, certified cheque or money order, in default of which he shall be imprisoned for 60 days or until the sum of $10,000.00 is sooner paid. 3. A repayment plan for the balance of the support due shall be determined by the court on April 2, 2019.

4. If this order is not complied with, the court will hear submissions on April 2, 2019 as to why the Respondent should not be immediately imprisoned. [ 75 ] If the Applicant is seeking costs of this default hearing, brief cost submissions not to exceed 3 pages with a bill of costs and any Offer to Settle shall be served and filed within 30 days and the respondent shall have 30 days from his receipt of the applicant’s cost submissions to serve and file his response. All submissions to be filed with the trial coordinator. Released: January 8, 2019 Signed: Justice Roselyn Zisman